Public Guardian v JM

Abstract

Power of attorney – Lasting power of attorney. The respondent had been appointed by DP under a lasting power of attorney which had been registered with the Office of the Public Guardian. The Public Guardian had received two separate referrals regarding the respondent’s conduct in his capacity as attorney. The Public Guardian applied for the LPA to be revoked and cancelled and for an order that a member of the panel of deputies be invited to apply for appointment as a deputy. The Court of Protection allowed the application and made the orders requested. The respondent had, in all the circumstances, behaved in a way which had contravened his authority and which had not been in DP’s best interests.

Summary

The judgment is available at: [2014] EWCOP B4.

DP was born in 1925. Her closest living relatives were two elderly cousins and a number of first cousins once removed. JM was born in 1945. He had known DP since 2006 and had formerly been her gardener. In August 2011, DP executed her last will and testament in which she appointed JM and her accountant to be her executors. She made bequests to the cemetery where her husband was buried and to her church. The remainder of her estate was left to JM. In October, DP executed a lasting power of attorney (LPA) for her property and financial affairs in which she appointed JM as sole attorney. Two of DP’s friends completed Pt B of the prescribed form and certified that DP understood the purpose of the LPA and the scope of the authority conferred under it and that she had not been pressurised into making it. There were no restrictions on the attorney’s authority, no guidance for him to follow, he was not awarded a salary and nobody was named to be notified when an application was made to register the LPA. On 20 February 2012, the LPA was registered by the Office of the Public Guardian (OPG). From April, DP had lived in a residential care home. In July 2013, the OPG applied to the court for: (i) an order under s 22(4)(b) of the Mental Capacity Act 2005 for the revocation and cancellation of the registered LPA made by DP; and (ii) an order directing that a member of the panel of deputies be invited to make an application for appointment as deputy to manage DP’s property and affairs. A senior investigations officer of the OPG made a witness statement regarding JM’s activities. JM had sold DP’s house and placed the proceeds of sale in a high interest bank account in his own name, he had attempted to cash DP’s investment bond and had sought to have it transferred into his own name, he had gifted £38,000 to himself from DP’s estate, he could not account for sums withdrawn from her bank account and he had funded the lease of a motability vehicle (which was in his wife’s name and for which she received disability living allowance) and fuel from DP’s funds. Further, the local NHS trust had expressed concerns regarding DP’s personal welfare. JM submitted a witness statement in response in which he stated that DP had given him specific instructions of things she had wanted him to do if anything happened to her and that he had done his best to fulfil those wishes. He contended that misleading information had been provided to the OPG in respect of the investment bond and he included statements regarding the incident which had led to concerns regarding DP’s welfare, what had happened to DP’s money and how he had cleared and sold her house. He explained that DP had been financing the vehicle because it had been acquired for her benefit so that he could take her on trips and to hospital appointments and for his use whenever he visited her property. If the LPA were revoked, he warned, he would not be able to keep up the vehicle payments and so could not continue to use the car for DP’s benefit. Some of the money missing from DP’s funds was accounted for by JM having paid himself a salary in respect of clearing DP’s house and carrying out the gardening.

The application would be allowed.

Having regard to all the circumstances, JM had behaved in a way which had both contravened his authority and which had not been in DP’s best interests. On the balance of probabilities, based on the evidence that was before the court, DP lacked the capacity to revoke the LPA. JM had contravened s 12 of the Act, which set out the limited circumstances in which an attorney might make gifts. He should have applied to the Court of Protection for formal authorisation to have made a gift to himself of £38,000. He had contravened his authority by having awarded himself a salary; he had had no authority to charge for his services under the LPA itself and, if he had wished to receive a salary, he should have applied to the court for directions under the Act. He had been in breach of his fiduciary duties by having failed to keep proper accounts and financial records. There was no reason why JM’s wife could not have applied the mobility component of her disability living allowance for the purpose for which it was intended and, having received a substantial gift of £38,000 from DP’s estate, it was surprising that JM should have insufficient resources to keep up payments on the vehicle (see [32], [34]-[37], [39]-[42], [48] of the judgment).

Accordingly, the LPA would be revoked under s 22(4)(b) of the Act and the Public Guardian would be directed to cancel the registration of the instrument under para 18 of Sch 1 to the Act. Further, it was directed that a member of the panel of deputies be invited to make an application to be appointed as deputy to manage DP’s property and affairs (see [49] of the judgment).

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